Saturday, May 28, 2016

USD Should Establish a Gail Heriot Award

Peter Wood of the National Association of Scholars had sent a press release about a controversy concerning Professor Gail Heriot's testimony about transgender bathrooms. I don't consider the issue to be a federal one, and I don't consider it to be particularly important. However, I do believe that a professor with an opinion should be allowed to testify before Congress without having her life threatened by authoritarian left wingers. I wrote this email to the dean of the University of San Diego's law school and the university's president. Peter Wood's email follows.

Dear Dean Ferruolo and President Harris:

I read about the recent abuse of Professor Gail Heriot.

Gail Heriot has performed a public service by testifying before the US
House Taskforce on Executive Overreach. In response, Representative Zoe Lofgren
has attacked Professor Heriot, calling her a bigot. Several blogs have joined
the attack, and activists who support Representative Lofgren’s views and tenor
have sent Professor Heriot death threats. As well, Dean Ferruolo has received demands that
he fire Professor Heriot.

In a sense, this is a letter of congratulation. In hiring and supporting
Professor Heriot, you are performing an important public service. Easy cases do
not test academic freedom, and it is with respect to hard cases that public
service like Heriot’s is signal.

We have seen this intolerant tendency in and around universities since
the 1980s. Representative Lundgren’s inability to disagree about a difficult
moral and social question is inconsistent with the ability of a free society to
function. Her performance has been disgraceful.

It is time for universities to encourage political speech that offends
authoritarian sensibilities. I urge the University of San Diego to establish a
Gail Heriot award to honor faculty who engage in difficult public debate.

Peter
Wood, the president of the National Association of Scholars, has responded with
the following statement to the controversy over Professor Heriot’s May 24, 2016
testimony to the U.S. Taskforce on Executive Overreach.

On
Tuesday Gail Heriot, a professor of law at the University of San Diego and a
board member of the National Association of Scholars, gave testimony to the
U.S. House Taskforce on Executive Overreach criticizing new guidance on restrooms
and locker rooms for transgendered individuals. Professor Heriot testified
that the Department of Education’s Office for Civil Rights (OCR) had overstepped
its legal authority in issuing its May 13 “Dear Colleague” letter, which
requires all schools to allow students to use the restroom and locker room of
their choice, regardless of biological sex.

In
the questioning that followed Professor Heriot’s prepared statement, California
Representative Zoe Lofgren attacked Professor
Heriot’s testimony as “offensive.” Lofgren continued, "I think you’re a bigot,
lady. I think you are an ignorant bigot." Lofgren was particularly upset that
Professor Heriot’s remarks would become part of the committee’s official record.
The chairman of the Taskforce, Representative Steve King (Iowa), responded to
Lofgren’s outburst by calling the meeting to order and asked Lofgren to refrain
from “calling names.” Lofgren, however, persisted and announced she could “not
allow that kind of bigotry to go unchallenged.”

Several
left-wing blogs quickly reported on the event. Brad Reed, writing at Raw Story,
characterized Lofgren’s remarks as an “epic smack-down.” The
reports set off a cascade of hate mail to Professor Heriot, including death
threats and a writer urging her to commit suicide. Stephen C. Ferruolo, the dean
of the law school at the University of San Diego, has also received demands that
he fire Professor Heriot.

The
National Association of Scholars strongly supports Professor Heriot. Her invited
testimony to the U.S. House Taskforce on Executive Overreach was well crafted
and represents carefully considered views well within her professional
expertise. In no way did Professor Heriot present “bigoted” statements on sexual
identity. Rather, she gave a history of the OCR’s past disregard for legal
limits to its authority and traced the history of the law regarding transgender
individuals. She also noted that the concept of “transgender” did not enter the
legal vocabulary until many years after the passage of Title IX, which OCR
claims as the basis for its authority to issue its “Dear Colleague”
letters.

Lofgren’s
outburst was outrageous. It violated the standards of civility of the U.S. House
of Representatives. And it was especially inappropriate in view of the temperate
character of Professor Heriot’s remarks. It is perhaps too much to hope that
Representative Lofgren will apologize for her antics as they seem to have served
her purpose in exciting her progressive base. Other observers will take note of
her abuse of her authority.

We
expect the University of San Diego to disregard the calls to remove Professor
Heriot from her position.

The
National Association of Scholars recognizes Professor Heriot’s outstanding work
on behalf of civil rights in America and her determination to uphold the rule of
law during a period in which the executive has frequently abused it.

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Mitchell Langbert

About Me

I have researched and written about employee benefit issues and in my previous life was a corporate benefits administrator. I am currently associate professor of business at Brooklyn College. I hold a Ph.D. from the Columbia University Graduate School of Business, an MBA from UCLA and an AB from Sarah Lawrence College. I am working on a project involving public policy. I blog on academic and political topics.